Gary Albert Watts v Christine Deborah Watts
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Mr Justice Cobb,Sir Stanley Burnton |
| Judgment Date | 21 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1297 |
| Docket Number | Case No: A3/2014/1521 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 2015 |
[2015] EWCA Civ 1297
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (PROBATE)
CATHERINE NEWMAN QC SITTING AS A DEPUTY HIGH COURT JUDGE
HC12B04920
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sales
Mr Justice Cobb
and
Sir Stanley Burnton
Case No: A3/2014/1521
Mr Neil McLarnon, authorised by the Bar Pro Bono Unit, for the Appellant
Ms Penelope Reed QC & Mr Jordan Holland (instructed by Thomas Eggar LLP) for the Respondent
Hearing date: 10 November 2015
This is an appeal in two actions which relate to a dispute between a brother and a sister over their late mother's estate. The actions were brought by the sister, the respondent to this appeal, against her brother, the appellant, to dispute the due execution of a will purporting to have been made by the mother in 2011 to replace an earlier will made by her in 1999 ("the probate action") and for relief under the Inheritance (Provision for Family and Dependants) Act 1975 ("the Inheritance Act proceedings"). The trial took place before Catherine Newman QC, sitting as a part-time deputy High Court Judge. Ms Newman is a practising barrister.
In the event, in a judgment handed down on 12 March 2014, in the probate action the judge pronounced against the validity of the 2011 will and in favour of the 1999 will, which she directed should be admitted to probate. This meant that it was unnecessary to grant relief in the Inheritance Act proceedings, though the judge indicated that she would have done so had the 2011 will been found to have been valid.
At the commencement of the trial an issue arose whether the judge should recuse herself on grounds of appearance of bias, on the footing that in the course of her practice as a barrister she was engaged in long-running litigation in which she was leading the barrister appearing as counsel for the sister, Mr Jordan Holland. It was said on behalf of the brother that this gave rise to a legitimate concern that the judge would favour the sister in deciding the case. The judge heard argument on the brother's application that she should recuse herself and dismissed it, with reasons to follow. She gave her reasons for dismissing the application in a short separate judgment handed down on 14 February 2014 after the close of the trial hearing, which took place on 11, 12, 13 and 14 February 2014.
The appellant sought permission to appeal the orders made by the judge on the basis that the judge had erred in her decision on the merits of the case and also on the basis that they should be set aside on grounds of appearance of bias. Briggs LJ refused permission to appeal in relation to the merits but granted permission in relation to the appeal in respect of alleged appearance of bias.
The court is indebted to all counsel appearing on the appeal for their research and submissions. We are particularly indebted to Mr McLarnon, who is acting for the appellant on a pro bono basis and has put a great deal of time and effort into the preparation and presentation of the case.
The factual background to the recusal application
As is usual practice, the judge was assigned a reading day (10 February) on the day before the trial was due to begin. On reading into the case she realised that Mr Holland was instructed for the respondent and that she was leading Mr Holland in other, completely unrelated litigation. Mr Holland and the judge do not practise in the same chambers.
In the interests of transparency and to provide the appellant with an informed opportunity to make any objection to her sitting to hear the case, on the afternoon of 10 February the judge caused her clerk to send an email to the appellant's representatives to inform them that she was leading Mr Holland "on a separate case and has been doing so for the last year." I think this was a sensible thing to do. Appearances matter and it was better to have this connection, albeit limited in nature, out in the open rather than run the risk of it emerging much later, after the end of the case, when it might have appeared more sinister than it really was: see Davidson v Scottish Ministers [2004] SCLR 991, HL, at [19] per Lord Bingham. The judge gave no further detail about the case in which she was instructed with Mr Holland.
In the probate action and the Inheritance Act proceedings Mr Holland was acting under a conditional fee agreement ("CFA"), so that whether he was paid or not in relation to the case would depend upon its outcome. This was pointed out to the judge by Mr McLarnon on the recusal application.
On the first day of the trial, 11 February, Mr McLarnon made an application for the appellant that the judge should recuse herself by reason of apparent bias. The principal thrust of his argument was that there were objective grounds for legitimate concern that the judge might be too generous to Mr Holland (and hence too generous to the respondent, his client) in the trial, to protect Mr Holland from disappointment associated with losing the case – which could be expected to be particularly great because of the personal financial implications of that for Mr Holland by reason of the CFA arrangement under which he was acting for the respondent – and so avoid damaging their future working relationship in the other litigation in which they were instructed to act together.
The respondent resisted the application. She had come to court ready to proceed with the trial and wished to avoid the expense, frustration and delay which would arise if the judge recused herself.
The judge heard argument on the recusal application at the outset of the hearing on 11 February. She made up her mind at that stage and announced her decision, which was to dismiss the application, with reasons to follow at the end of the trial. The trial then went ahead, with the eventual result in favour of the respondent referred to above.
On 14 February, the day after the hearing had finished, the judge handed down her written reasons for her decision to dismiss the application to recuse herself.
The judgment on the recusal application
The judge directed herself by reference to the correct test in relation to appearance of bias, as laid down in Porter v Magill [2001] UKHL 67; [2002] 2 AC 357, namely "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased": [103] per Lord Hope of Craighead. In this way the test at common law for apparent bias has been assimilated with that in Article 6 of the European Convention on Human Rights.
The judge also reminded herself of the guidance given by Lord Steyn in Lawal v Northern Spirit Ltd [2003] UKHL 35; [2004] 1 All ER 187 at [14]:
"… Public perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson (2000) 201 CLR 488 at 509 (para. 53), by Kirby J when he stated that 'a reasonable member of the public is neither complacent nor unduly sensitive or suspicious";
and of his citation with approval at [22] of the view that
"… What the public was content to accept many years ago is not necessarily acceptable in the world of today. The indispensable requirement of public confidence in the administration of justice requires higher standards today than was the case even a decade or two ago."
In addition, the judge referred to the recent guidance given by this court in Resolution Chemicals Ltd v H. Lundbeck A/S [2013] EWCA Civ 1515; [2014] 1 WLR 1943 regarding application of the principle laid down in Porter v Magill.
The judge then said this at [10]:
"10. … in my judgment, there is no real possibility that a fair minded and informed observer would think that a Judge, even a deputy, would be biased in favour of another barrister who, on a completely different case, works in a team as a junior to the Judge. It would be obvious to such an observer that my experience in the conduct of trials, the practice of law and the assessment of evidence is much greater than that of a barrister called to the Bar thirty years after my own call and in the team in which we do work together I am the senior and he is the junior. If there is any disparity in authority between us, a fair minded person would think that it is I who command the authority, not counsel for the claimant. Authority aside, there is no real reason why a Judge would favour such a person. We share no common financial or other interest in the outcome of either of the two cases before the court, discretionary or otherwise. Favouring counsel for the claimant in this case would result in no advantage for either of us in the conduct of the case in which we are members of the same team. Above all, I cannot accept that any fair minded informed observer would think that there is a real possibility that I would lean in the claimant's favour against the weight of the evidence which I hear or fail to weigh the arguments properly so that counsel for the claimant of could recover a fee by winning the case."
Discussion
On the appeal, Mr McLarnon criticised the judge on three grounds: (i) for the paucity of...
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